BILL NUMBER: SB 286	CHAPTERED  09/07/99

	CHAPTER   359
	FILED WITH SECRETARY OF STATE   SEPTEMBER 7, 1999
	APPROVED BY GOVERNOR   SEPTEMBER 7, 1999
	PASSED THE SENATE   AUGUST 24, 1999
	PASSED THE ASSEMBLY   AUGUST 19, 1999
	AMENDED IN ASSEMBLY   JULY 8, 1999
	AMENDED IN ASSEMBLY   JUNE 9, 1999
	AMENDED IN SENATE   APRIL 27, 1999
	AMENDED IN SENATE   APRIL 5, 1999

INTRODUCED BY   Senator Wright

                        FEBRUARY 2, 1999

   An act to amend Section 1569.17 of the Health and Safety Code,
relating to care facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 286, C. Wright.  Residential care facilities for the elderly.
   Existing law provides for the licensure of residential care
facilities for the elderly by the State Department of Social
Services.  Existing law requires the department to secure a criminal
record on the applicant and specified persons, including certain
volunteers or any staff person or employee who has frequent and
routine contact with the clients, before issuing a license to any
person or persons to operate or manage a residential care facility
for the elderly.
   This bill would apply the criminal record clearance requirements
to a staff person, volunteer, or employee whether or not they have
frequent and routine contact with the clients.  The bill would exempt
from the criminal record clearance requirement, under specified
circumstances, certain friends and family members,  volunteers,
3rd-party contractors and other business professionals, licensed or
certified medical professionals, and other specified individuals.
The bill would also extend application of the criminal record
clearance requirements to certain officers of the governing body of
the applicant and other persons with a financial interest in the
applicant.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1569.17 of the Health and Safety Code is
amended to read:
   1569.17.  The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a
residential care facility for the elderly.  The Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999.  It
is the intent of the Legislature in enacting this section to require
the fingerprints of those individuals whose contact with clients of
residential care facilities for the elderly may pose a risk to the
clients' health and safety.
   (a) Before issuing a license to any person or persons to operate
or manage a residential care facility for the elderly, the department
shall secure from an appropriate law enforcement agency a criminal
record to determine whether the applicant or any other person
specified in subdivision (b) has ever been convicted of a crime other
than a minor traffic violation or arrested for any crime specified
in Section 290 of the Penal Code, for violating Section 245 or 273.5,
subdivision (b) of Section 273a or, prior to January 1, 1994,
paragraph (2) of Section 273a of the Penal Code, or for any crime for
which the department cannot grant an exemption if the person was
convicted and the person has been exonerated.  That criminal history
information shall include the full criminal record, if any, of those
persons, and subsequent arrest information pursuant to Section
11105.2 of the Penal Code.  The following shall apply to the criminal
record information:
   (1) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
   (2) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) is awaiting
trial for a crime other than a minor traffic violation, the State
Department of Social Services shall cease processing the application
until the conclusion of the trial.
   (3) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
   (4) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
   (5) An applicant and any person specified in subdivision (b) shall
submit a second set of fingerprints to the Department of Justice,
for the purpose of searching the records of the Federal Bureau of
Investigation, in addition to the search required by subdivision (a).
  If an applicant meets all other conditions for licensure, except
receipt of the Federal Bureau of Investigation's criminal history
information for the applicant and persons listed in subdivision (b),
the department may issue a license if the applicant and each person
described by subdivision (b) has signed and submitted a statement
that he or she has never been convicted of a crime in the United
States, other than a traffic infraction as defined in paragraph (1)
of subdivision (a) of Section 42001 of the Vehicle Code.  If, after
licensure, the department determines that the licensee or person
specified in subdivision (b) has a criminal record, the license may
be revoked pursuant to Section 1569.50.  The department may also
suspend the license pending an administrative hearing pursuant to
Sections 1569.50 and 1569.51.
   (b) In addition to the applicant, the provisions of this section
shall apply to criminal convictions of the following persons:
   (1) (A) Adults responsible for administration or direct
supervision of staff.
   (B) Any person, other than a client, residing in the facility.
Residents of unlicensed independent senior housing facilities that
are located in contiguous buildings on the same property as a
residential care facility for the elderly shall be exempt from these
requirements.
   (C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene.  Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section.  A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for the elderly.  The facility shall
maintain the copy of the certification on file as long as the care is
being provided by the certified nurse assistant or certified home
health aide at the facility.  Nothing in this paragraph restricts the
right of the department to exclude a certified nurse assistant or
certified home health aide from a licensed residential care facility
for the elderly pursuant to Section 1569.58.
   (D) Any staff person, volunteer, or employee who has contact with
the clients.
   (E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in a
similar capacity.
   (F) Additional officers of the governing body of the applicant or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation.  The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
   (2) The following persons are exempt from requirements applicable
under paragraph (1):
   (A) A spouse, significant other, or close friend of a client shall
be exempt if this person is visiting the client or provides direct
care and supervision to that client only.
   (B) A volunteer to whom all of the following apply:
   (i) The volunteer is at the facility during normal waking hours.
   (ii) The volunteer is directly supervised by the licensee or a
facility employee with a criminal record clearance or exemption.
   (iii) The volunteer spends no more than 16 hours per week at the
facility.
   (iv) The volunteer does not provide clients with assistance in
dressing, grooming, bathing, or personal hygiene.
   (v) The volunteer is not left alone with clients in care.
   (C) A third-party contractor retained by the facility if the
contractor is not left alone with clients in care.
   (D) A third-party contractor or other business professional
retained by a client and at the facility at the request or by
permission of that client.  These individuals shall not be left alone
with other clients.
   (E) Licensed or certified medical professionals are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing.  This exemption shall not apply to a person
who is a community care facility licensee or an employee of the
facility.
   (F) Employees of licensed home health agencies and members of
licensed hospice interdisciplinary teams who have contact with a
resident of a residential care facility at the request of the
resident or resident's legal decisionmaker are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing.  This exemption shall not apply to a person
who is a community care facility licensee or an employee of the
facility.
   (G) Clergy and other spiritual caregivers who are performing
services in common areas of the residential care facility, or who are
advising an individual resident at the request of, or with
permission of, the resident, are exempt from fingerprint and criminal
background check requirements imposed by community care licensing.
This exemption shall not apply to a person who is a community care
facility licensee or an employee of the facility.
   (H) Nothing in this paragraph shall prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
   (c) (1) (A) Subsequent to initial licensure, any person required
to be fingerprinted pursuant to subdivision (b) shall, as a condition
to employment, residence, or presence in a residential facility for
the elderly, be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal convictions.  The licensee
shall submit these fingerprints, along with a second set of
fingerprints for the purpose of searching the records of the Federal
Bureau of Investigation, to the Department of Justice, or to comply
with paragraph (1) of subdivision (g) prior to the person's
employment, residence, or initial presence in the residential care
facility for the elderly.
   (B) These fingerprints shall be on a fingerprint card provided by
the State Department of Social Services and submitted to the
Department of Justice by the licensee or sent by electronic
transmission in a manner approved by the State Department of Social
Services.  A licensee's failure to submit fingerprints to the
Department of Justice, or to comply with paragraph (1) of subdivision
(g), as required in this section, shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation.  The State
Department of Social Services may assess civil penalties for
continued violations as permitted by Section 1569.49.  The licensee
shall then submit these fingerprints to the State Department of
Social Services for processing.  Documentation of the individual's
clearance or exemption shall be maintained by the licensee and be
available for inspection.  When live-scan technology is operational,
as defined in Section 1522.04, the Department of Justice shall notify
the department, as required by that section, and notify the licensee
by mail within 14 days of electronic transmission of the
fingerprints to the Department of Justice, if the person has no
criminal record.  A violation of the regulations adopted pursuant to
Section 1522.04 shall result in the citation of a deficiency and an
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation.  The department may assess civil
penalties for continued violations as permitted by Section 1569.49.
   (2) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided for in this
subdivision.  If no criminal record information has been recorded,
the Department of Justice shall provide the licensee and the State
Department of Social Services with a statement of that fact within 14
calendar days of receipt of the fingerprints.  If new fingerprints
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprints, notify
the licensee that the fingerprints were illegible.
   (3) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision.  If the State Department of Social Services determines,
on the basis of the fingerprints submitted to the Department of
Justice, that the person has been convicted of a sex offense against
a minor, an offense specified in Section 243.4, 273a, or 273d,
subdivision (a) or (b) of Section 368 of the Penal Code, or a felony,
the State Department of Social Services shall notify the licensee in
writing within 15 calendar days of the receipt of the notification
from the Department of Justice to act immediately to terminate the
person's employment, remove the person from the residential care
facility for the elderly, or bar the person from entering the
residential care facility for the elderly.  The State Department of
Social Services may subsequently grant an exemption pursuant to
subdivision (f).  If the conviction was for another crime, except a
minor traffic violation, the licensee shall, upon notification by the
State Department of Social Services, act immediately to either (1)
terminate the person's employment, remove the person from the
residential care facility for the elderly, or bar the person from
entering the residential care facility for the elderly or (2) seek an
exemption pursuant to subdivision (f).  The department shall
determine if the person shall be allowed to remain in the facility
until a decision on the exemption is rendered by the department.  A
licensee's failure to comply with the department's prohibition of
employment, contact with clients, or presence in the facility as
required by this paragraph shall be grounds for disciplining the
licensee pursuant to Section 1569.50.
   (4) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions.  The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
   (5) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f).  The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
   (d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere.  Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, or the
judgment of conviction has been affirmed on appeal or when an order
granting probation is made suspending the imposition of the sentence,
notwithstanding a subsequent order pursuant to the provisions of
Sections 1203.4 and 1203.4a of the Penal Code permitting a person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment.  For purposes of this section
or any other provision of this chapter, the record of a conviction,
or a copy thereof certified by the clerk of the court or by a judge
of the court in which the conviction occurred, shall be conclusive
evidence of the conviction.  For purposes of this section or any
other provision of this chapter, the arrest disposition report
certified by the Department of Justice or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
   (2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
   (e) The State Department of Social Services shall not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client.  The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
   (f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility for the elderly
as specified in paragraphs (4), (5), and (6) of subdivision (c) if
the director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of the
crime, if other than the applicant, are of such good character as to
justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c).  However, no exemption
shall be granted pursuant to this subdivision if the conviction was
for an offense specified in Section 220, 243.4, or 264.1, subdivision
(a) of Section 273a or, prior to January 1, 1994, paragraph (1) of
Section 273a, Section 273d, 288, or 289, subdivision (a) of Section
290, or subdivision (a) or (b) of Section 368 of the Penal Code, or
was a conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.  The director
shall notify in writing the licensee or the applicant of his or her
decision within 60 days of receipt of all information from the
applicant and other sources determined necessary by the director for
the rendering of a decision pursuant to this subdivision.
   (2) The department shall not prohibit a person from being employed
or having contact with clients in a facility on the basis of a
denied criminal record exemption request or arrest information unless
the department complies with the requirements of Section 1569.58.
   (g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
records clearance, as defined in subdivision (a), from one facility
to another, as long as the criminal record clearance has been
processed through a state licensing district office, and is being
transferred to another state licensing district office.  The request
shall be submitted in writing to the department, and shall include a
copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident.  Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
   (2) The State Department of Social Services shall hold criminal
records clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal records clearances to be transferred under
this section.
   (h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1569.58, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
   (i) Amendments to the provisions of this section made in the 1998
calendar year shall be implemented commencing 60 days after the
effective date of the act amending this section in the 1998 calendar
year, except those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation, which
shall be implemented commencing on January 1, 1999.
